Provisions on regulatory fines

(1) It is a regulatory offence for a person, as legal representative (section 4(1) sentence 1) of an undertaking or a parent undertaking, or, for a sole trader, as the owner or their legal representative, to contravene, in the preparation or adoption of the annual financial statements, a provision
1.
a) of section 243(1) or (2), sections 244, 245, 246, 247, 248, 249(1) sentence 1 or (2), section 250(1) or (2), or section 251 of the Commercial Code, on form or content,
b) of section 253(1) sentences 1, 2, 3 or 4, (2) sentence 1, also in conjunction with sentence 2, (3) sentences 1, 2, 3, 4 or 5, (4) or (5) of the Commercial Code, on valuation,
c) (repealed),
d) of section 5(1) sentence 2 in conjunction with a provision of section 264(1a), section 265(2), (3), (4) or (6), sections 266, 268(3), (4), (5), (6) or (7), sections 272, 274 or section 275 or section 277 of the Commercial Code, on structure, or
e) of section 5(2) sentence 2 in conjunction with section 284 or section 285 numbers 1 to 4, 7 to 13, 15a, 17 to 33 or number 34 of the Commercial Code, on the information to be given in the notes,
2. in the preparation of the consolidated financial statements or sub-group financial statements, of section 13(2) sentence 1 in conjunction with a provision
a) of section 294(1) of the Commercial Code, on the scope of consolidation,
b) of section 297(1a), (2) or (3) or section 298(1) in conjunction with sections 244, 245, 246, 247, 248, 249(1) sentence 1 or (2), section 250(1) or (2), or section 251 of the Commercial Code, on the content or form of the consolidated financial statements,
c) of section 300 of the Commercial Code, on the principles of consolidation or the requirement of completeness,
d) of section 308(1) sentence 1 in conjunction with the provisions of the Commercial Code referred to in number 1 letter b, or of section 308(2) or section 308a of the Commercial Code, on valuation,
e) of section 311(1) sentence 1 in conjunction with section 312 of the Commercial Code, on the treatment of associated undertakings, or
f) of section 308(1) sentence 3, section 313 or section 314 of the Commercial Code, on the information to be given in the notes to the consolidated financial statements,
3. in the preparation of the management report, of section 5(2) sentence 2 in conjunction with section 289(1) of the Commercial Code, on the content of the management report,
4. in the preparation of the group management report or sub-group management report, of section 13(2) sentence 3 in conjunction with section 315(1), also in conjunction with (3), of the Commercial Code, on the content of the group management report,
5. in the disclosure, publication or reproduction, of a provision of section 9(1) or section 15(2), each in conjunction with section 328 of the Commercial Code, on form or content, or
6. a statutory ordinance issued under section 5(3) or section 13(4), each in conjunction with section 330 sentence 1 of the Commercial Code, insofar as it refers, for a particular set of facts, to this provision on regulatory fines.
(1a) It is also a regulatory offence for a person to fail to transmit, or fail to transmit in time, the declaration to the body maintaining the company register that is prescribed under section 2(2) or section 12(2).
(2) It is a regulatory offence for a person to issue an auditor's report under section 322(1) of the Commercial Code in respect of financial statements to be examined under section 6(1) sentence 1, also in conjunction with sentence 3, of
1. an undertaking that is a public-interest entity under section 316a sentence 2 number 1 of the Commercial Code, or
2. an undertaking not referred to in number 1, although, under section 6(1) sentence 2 in conjunction with section 319(2) or (3) or section 319b(1) sentences 1 or 2 of the Commercial Code, that person may not be the auditor, or, under section 6(1) sentence 2 in conjunction with section 319(4) or section 319b(1) sentences 1 or 2 of the Commercial Code, the firm of auditors or the accounting firm for which that person is acting may not be the auditor. It is also a regulatory offence for a person to issue an auditor's report under section 322(1) of the Commercial Code in respect of financial statements to be examined under section 14(1) sentence 1 of
1. a parent undertaking that is a public-interest entity under section 316a sentence 2 number 1 of the Commercial Code, or
2. a parent undertaking not referred to in number 1, although, under section 14(1) sentence 2 in conjunction with section 319(2) or (3) and (5) or section 319b(1) sentences 1 or 2 and (2) of the Commercial Code, that person may not be the auditor, or, under section 14(1) sentence 2 in conjunction with section 319(4) and (5) or section 319b(1) sentences 1 or 2 and (2) of the Commercial Code, the firm of auditors or the accounting firm for which that person is acting may not be the auditor. It is furthermore a regulatory offence for a person to issue an auditor's report under section 322(1) of the Commercial Code in respect of financial statements to be examined under section 6(1) sentence 1, also in conjunction with sentence 3, or under section 14(1) sentence 1, of an undertaking or parent undertaking that is a public-interest entity under section 316a sentence 2 number 1 of the Commercial Code, although
1. that person, or the audit firm for which that person is acting, or a member of the network to which that person or the audit firm for which that person is acting belongs, contravenes a provision of Article 5(4) subparagraph 1 sentence 1 or (5) subparagraph 2 sentence 2 of Regulation (EU) No 537/2014 of the European Parliament and of the Council of 16 April 2014 on specific requirements regarding statutory audit of public-interest entities and repealing Commission Decision 2005/909/EC (OJ L 158, 27.5.2014, p. 77; L 170, 11.6.2014, p. 66), or
2. that person, or the audit firm for which that person is acting, may not carry out the statutory audit under Article 17(3) of Regulation (EU) No 537/2014.
(2a) It is a regulatory offence for a person, as a member of an audit committee established under section 6(1) sentence 2 in conjunction with section 324(1) sentence 1 of the Commercial Code or under section 7 sentence 5 in conjunction with section 107(4) sentence 1 of the Stock Corporation Act, of an undertaking that is a public-interest entity under section 316a sentence 2 number 1 of the Commercial Code, to
1. fail to monitor the independence of the auditor or the audit firm in accordance with Article 4(3) subparagraph 2, Article 5(4) subparagraph 1 sentence 1, or Article 6(2) of Regulation (EU) No 537/2014, or
2. submit a recommendation for the appointment of an auditor or audit firm that does not meet the requirements of Article 16(2) subparagraph 2 or 3 of Regulation (EU) No 537/2014, or that was not preceded by a selection procedure under Article 16(3) subparagraph 1 of Regulation (EU) No 537/2014.
(2b) It is a regulatory offence for a person, as a member of an audit committee established under section 6(1) sentence 2 in conjunction with section 324(1) sentence 1 of the Commercial Code, of an undertaking referred to in subsection (2a), to submit to the shareholders, or to the body otherwise responsible for appointing the auditor, a proposal for the appointment of an auditor or audit firm that does not meet the requirements of Article 16(5) subparagraph 1 of Regulation (EU) No 537/2014.
(2c) It is a regulatory offence for a person, as a member of a supervisory board under section 7 sentence 5, of an undertaking referred to in subsection (2a), to submit to the shareholders, or to the body otherwise responsible for appointing the auditor, a proposal for the appointment of an auditor or audit firm that does not meet the requirements of Article 16(5) subparagraph 1, or subparagraph 2 sentences 1 or 2, of Regulation (EU) No 537/2014.
(3) The regulatory offence may, in the cases under subsection (2) sentence 1 number 1, sentence 2 number 1 and sentence 3, and under subsections (2a) to (2c), be punished with a fine of up to five hundred thousand euro; in the cases under subsections (1), (1a) and (2) sentence 1 number 2 and sentence 2 number 2, with a fine of up to fifty thousand euro. Where the undertaking is capital-market-oriented within the meaning of section 264d of the Commercial Code, the fine in the cases under subsection (1) is at most the higher of the following amounts:
1. two million euro,
2. twice the economic benefit derived from the regulatory offence, the economic benefit comprising profits made and losses avoided, and being capable of estimation.
(3a) Where a fine is imposed under section 30 of the Act on Regulatory Offences against a capital-market-oriented undertaking within the meaning of section 264d of the Commercial Code in the cases under subsection (1), that fine is at most the higher of the following amounts:
1. ten million euro,
2. 5 per cent of the total annual turnover achieved by the undertaking in the financial year preceding the authority's decision, or
3. twice the economic benefit derived from the regulatory offence, the economic benefit comprising profits made and losses avoided, and being capable of estimation. Section 334(3b) of the Commercial Code applies accordingly. In the cases under subsection (3) sentence 1 in conjunction with subsection (2) sentence 1 number 1, sentence 2 number 1 or sentence 3, section 30(2) sentence 3 of the Act on Regulatory Offences applies.
(4) The administrative authority within the meaning of section 36(1) number 1 of the Act on Regulatory Offences is
1. the Federal Financial Supervisory Authority, in the cases under subsection (1) for undertakings that are capital-market-oriented within the meaning of section 264d of the Commercial Code,
2. the Federal Office of Justice,
a) in the cases under subsection (1) where the Federal Financial Supervisory Authority is not the administrative authority under number 1,
b) in the cases under subsection (1a), and
c) in the cases under subsections (2a) to (2c),
3. the Auditor Oversight Body at the Federal Office for Economic Affairs and Export Control, in the cases under subsection (2).